The age old challenge of balancing the individuals’ right to privacy against the public interest in freedom of expression has resulted in conditions which have forced the hand of the judiciary. They are faced with the choice of recognising the tort of privacy or simply expanding the exisitng torts to cover the same ground. While the English courts have never created a true privacy tort, New Zealand has recently taken the step of accepting privacy as a free-standing tort in it’s own right.
I will discuss the legislative environment which led to this New Zealand development, the case which finally brought about the acceptance and discuss just how this new tort and susbsequnt decisions will affect the media. Finally I will …show more content…
Many question how the powerful and predominantly corporate enterprises of the fourth estate are simply allowed to regulate themselves. It is as a result of this situation that we find the most recent and relatively rapid development within the law of privacy in New Zealand, with a common law focus on restricting the ability of broadcasters to turn private trauma into public spectacle.
Development of Privacy tort
The need for action in defining the right to privacy and it’s relationship with freedom of speech was first raised in Tucker v News Media Ownership Ltd. McGechan J stated that “courts are being forced into a position where they must soon create a new law” if no legislative action is taken to protect privacy.
This was further reinforced in P v D in the High Court where Nicholson J said:
… the right of freedom of expression is not an unlimited and unqualified right and in my view is subject to limitations of privacy as well as other limitations such as indecency and defamation. I adopt the statements of Jeffries J, the Court of Appeal and McGechan J in the News Media Ownership case and I join with Gallen J in accepting that the tort of breach of privacy forms part of the law of New Zealand.
It is on this foundation that the judgment in Hosking v Runting achieved the important milestone of recognizing the stand-alone tort of privacy in New Zealand.
The New Zealand Court
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